The dispute over tribal fishing rights in Passamaquoddy Bay is again heating up, with four Passamaquoddy fishermen from Sipayik facing charges for lobstering in Canadian waters, the Canadian fisheries minister voicing support for Indigenous fishing rights and lobster fishermen from southwest New Brunswick holding a protest in St. Andrews over alleged lack of enforcement of Canadian fishing laws along the boundary with the U.S. and calling for the resignation of the fisheries minister. Similar incidents in which Sipayik fishermen, who maintain a right to fish in their traditional territory, have been charged for violating Canadian fishing laws have occurred during the past decade.
The four Passamaquoddy fishermen — Erik D. Francis and his two sons, Erik S. and Tyler Francis, and Adam Newell — are being charged by Fisheries and Oceans Canada with unlawful fishing in Canadian waters under the Coastal Fisheries Protection Act. The charges stem from two separate incidents that occurred in November 2022 and September 2023. In the September 2023 incident, 12 lobster traps were seized, and the three fishermen, Erik S. and Tyler Francis and Adam Newell, are facing an additional charge of obstruction of a protection officer.
In the November 2022 incident, 36 traps were seized, and Erik D. Francis, who has pleaded not guilty to the charges of unlawful fishing and unlawful entry in Canadian fishing waters, is waiting for his trial to begin in Saint John provincial court on Oct. 22. Francis said he will be raising a constitutional challenge in court, adding, “I don’t believe I’ve committed any crime.”
Treaty guaranteed right to fish
Francis stated that the 1760 Peace and Friendship Treaty between the Passamaquoddy and the British crown guaranteed the rights of Passamaquoddy to hunt, fish and farm in their traditional territory without interference from the British government. He and the other Passamaquoddy were fishing under the authority of the tribal government, with tribally issued licenses that allow them to fish in traditional Passamaquoddy territory, which includes all of Passamaquoddy Bay, into the Bay of Fundy to Grand Manan and up the coast to Point Lepreau. “I was directed to fish in our traditional territory by the Passamaquoddy tribal government,” Francis said.
The tribal members fish under the Passamaquoddy fisheries management plan, which includes a minimum size limit that is greater than the size limit in the nearby lobster fishing areas in Canada, along with a maximum size limit.
Francis notes that there are only four smaller boats from Sipayik that are fishing in Passamaquoddy Bay, with a total of 100 to 150 traps being fished from October to December. “There are not a lot of traps we fish over there.” Under Fisheries and Oceans Canada regulations, each licensed Canadian lobster fisherman in lobster fishing area 36 can fish up to 300 traps. Francis also pointed out that he is being charged over an incident that occurred while the season was open in lobster fishing area 36, which begins on the second Tuesday of November. As for the Peskotomuhkati Nation at Skutik, based in St. Andrews, it owns one vessel that is used for lobstering, with a commercial license to provide food for the three communities. Lobsters are only sold to meet the expenses of the boat, according to Paul Williams, the nation’s attorney in Canada, who noted that the boat also is used for other purposes, including helping with research on the use of ropeless lobster gear.
On Aug. 8, the three chiefs of the Passamaquoddy Nation applied to intervene in the case involving Francis, as the decision could affect the collective treaty rights of the nation and the Indigenous perspective should be given due weight by the court. The nation includes the communities of Sipayik and Motahkomikuk in Maine and Skutik in New Brunswick, with the Peskotomuhkati Nation at Skutik in active negotiations with the Canadian government for federal recognition. In the motion to intervene, Williams maintains that Canadian criminal courts are inappropriate for dealing with matters of treaty rights, pointing out that the Supreme Court of Canada has in three separate cases stated that criminal trials “are not the way for Canada to effectively address matters of Aboriginal and treaty rights.”
Francis also pointed out that the Canadian government is trying to apply Canadian laws to tribal treaty rights and failed to consult with the tribe. He finds it ironic that he, as a descendant of a signatory to the Peace and Friendship Treaty and a member of the tribe, is now being charged. He also notes that the charges are coming on the 25th anniversary of the Marshall decision in which the Supreme Court of Canada upheld the right of First Nations to fish for a moderate livelihood.
“I feel they’re excluding us from our food source,” said Francis, who noted that he distributes some of his catch with community members, including the elderly.
Fishermen protest lack of enforcement
Because of the ongoing disagreement over tribal fishing rights, on Sept. 14, more than 50 fishing boats from through lobster fishing area 36 staged a peaceful protest at the wharf in St. Andrews over what they describe as Fisheries Minister Diane Lebouthillier’s “continued mismanagement and failure to address critical issues in the industry,” according to a release from the Fundy North Fishermen’s Association, which represents fisheries across lobster fishing area 36, from Alma to St. Stephen, including Campobello Island and Deer Island. Calling for the minister’s resignation, the fishermen “are alarmed by the ongoing absence of fishery officer patrols on the water in LFA 36, which has allowed illegal fishing and buying activities to continue unchallenged, threatening the livelihoods of local fishermen who operate within the law,” the release states. The association supports the decision of Canadian fisheries officers to refuse work due to the minister’s earlier statements that accused them of racism. They urged Fisheries and Oceans Canada to “implement an enforcement plan and restore order in the region by a specified deadline or risk local fishermen taking matters into their own hands to patrol the waters.”
According to a Sept. 6 letter to the minister from Amanda Johnson, executive director of the Fundy North Fishermen’s Association, the lack of enforcement in lobster fishing area 36 “has allowed illegal fishing and buying activities to thrive, putting licensed fishers who follow the rules at risk.” She added, “Without patrols to enforce the boundary, poaching by American fishermen continues unchecked.”
To illustrate the extent of the issue, she noted that as part of the association’s participation in the retrieval of ghost gear, or lost lobster traps, last year they retrieved 1,347 traps, with 1,168 being U.S. traps. “American fishermen continue to fish illegally in Canadian waters, often cutting their trap lines and leaving their gear behind before returning to U.S. waters.”
During Question Period in the House of Commons on Sept. 16, Southwest New Brunswick Member of Parliament John Williamson stated that the Liberals “will not stop lobster poachers from Maine that are stealing Canadian resources. The Department of Fisheries has no enforcement officers along the Canada U.S. border in LFA 36.” Noting the protest held by the fishing boats is demanding that the fisheries minister enforce the country’s laws and protect Canadian sovereignty, he asked, “Will she do her job, or will the prime minister fire her?”
Williamson stated, “All fishing boats must follow Canadian law and the Supreme Court has ruled Canada’s department of fisheries is responsible for managing and safeguarding our waters. This applies to Indigenous fishing vessels. I applaud DFO enforcement officers for upholding Canadian law to combat poaching, protect the fisheries and defend our sovereignty on the New Brunswick Maine line.”
Fisheries minister issues statement on treaty rights
The following day, Fisheries Minister Diane Lebouthillier issued a statement to mark 25 years since the Supreme Court of Canada’s Marshall decision, which stated that 34 First Nations in New Brunswick, Prince Edward Island, Nova Scotia and the Gaspé region of Quebec have a treaty right to fish, hunt and gather in pursuit of a moderate livelihood. “This right stems from the Peace and Friendship Treaties of 1760 and 1761,” she stated. “In 2017, the Peskotomuhkati Nation at Skutik was also identified as a nation implicated by the Marshall decisions.”
Lebouthillier said the government must continue to honor the decision, as it is “a crucial move towards addressing injustices and recognizing treaty rights. They set in motion required actions by the federal government to support Indigenous communities’ increased participation in commercial fisheries.”
In response to questions concerning whether fishing laws are being enforced along the U.S. border, Fisheries and Oceans Canada emailed a statement on Sept. 25, saying, “Enforcement activities continue, and we are working to address any reports of unauthorized fishing activity across the region, including in the Bay of Fundy.” The statement notes that the ministers of Fisheries and Oceans Canada and Crown Indigenous Relations signed a fisheries agreement with the Peskotomuhkati at Skutik in 2023 for the provision of lobster licenses and the establishment of collaborative management structures respective to Indigenous fisheries.
The Fisheries and Oceans Canada statement continued that Canada “has not made any determination of whether the Passamaquoddy in the United States are ‘Aboriginal peoples of Canada.’” It added, “The U.S. based Passamaquoddy communities have not been recognized as having treaty rights in Canada, and as such the Department of Fisheries and Oceans will continue to enforce violations of the international boundaries, as it would for non Indigenous harvesters.”
Treaty rights are nonnegotiable
The latest incidents are similar to previous flare-ups, when Passamaquoddy fishermen from Sipayik were charged by Fisheries and Oceans Canada for fishing in Canadian waters. In December 2018, Sugum Francis and his crew were detained by fisheries officers and charged under the Coastal Fisheries Protection Act with illegally fishing in Canadian waters. After pleading guilty, Francis was fined $3,000 and each of the crew $500. Their catch was seized and their 35 traps were recovered by fisheries officers. In 2017, Adam Newell of Sipayik and four other tribal members aboard his boat were summonsed by Canadian fisheries officers for fishing without a license, and Fred Moore III and Kani Malsom have in the past had their traps seized by Fisheries and Oceans Canada.
Following the December 2018 incident, Hugh Akagi, sakomak of the Peskotomuhkati Nation in Canada, noted that the negotiating process for federal recognition in Canada is complicated. Concerning the fisheries, he stated, “We’re not negotiating the right. It’s about implementation and access.” While Passamaquoddys at Sipayik believe that they have the right to fish anywhere in Passamaquoddy Bay, issues involving the rights of Passamaquoddys living in Maine in the framework agreement for recognition in Canada will require careful negotiation.
Of the ongoing negotiations with Fisheries and Oceans Canada, Akagi said, “We would like the food fishery to be first on the agenda, then approach the commercial fishery. Once money appears, it changes the conversation.” While the Passamaquoddy have treaty rights that are non negotiable, Akagi said that there is “a big difference” between communal rights and individual rights. “We’re promoting the food fishery and commercial fishery as communal. The right belongs to all the nation,” he said, noting that any fishery has to benefit community and the people. “Individual rights for individual wealth are not part of our strategy,” he stated.
In March 2018, the Fundy North Fishermen’s Association had hosted a meeting to address issues raised by fishermen in New Brunswick who were concerned about Passamaquoddy fishermen being able to fish in Passamaquoddy Bay under a fisheries management plan with Fisheries and Oceans Canada. The association had been working to build a relationship with the Passamaquoddy and meeting with them in an effort to avoid any conflict.
